Rule 43 Applications: Maintenance Options in Divorce
In divorce matters, a person can bring a Rule 43 application in the High Court for a Court Order dealing with interim relief pending the divorce being finalised, including orders with respect primarily to issues of care and contact of minor children, child/spousal maintenance, and a contribution by the other party to your legal costs.
The importance of obtaining a maintenance order in a Rule 43 application is that this provides financial security going forward in the divorce, as the Court Order can be enforced through various means such as a writ.
One of the unfortunate effects of the COVID-19 lockdown is increased financial uncertainty and/or loss of employment, affecting the ability to pay child/spousal maintenance. However, this does not mean that no maintenance can be paid at all (there should be at least some form of attempt to pay something) nor does it mean that existing maintenance obligations fall away.
In new applications, the person required to pay maintenance will need to motivate as to what would constitute reasonable maintenance in their financial circumstances, which includes a consideration by the Court of their assets also.
If someone will be unable to pay maintenance in an existing Court Order, it is incumbent on them to make application to the Court motivating for the reduction of the maintenance in that Order. Their obligations to pay the maintenance in that Court Order do not simply cease or change on a temporary basis, unless there is agreement by the other party to any such change in the interim.
Material changes in circumstances entitle a person to bring a new Rule 43 application for an amended Rule 43 Court Order, as the case may be. If you are dealing with a defaulting spouse, you do have the option to request that the Court attach that person’s pension fund or retirement annuity to make up for any maintenance they had failed to pay.
Specific provision is made for this in both the Maintenance Act and Pension Funds Act and has been relied upon in the past in particular for the enforcement of child maintenance orders where a person has claimed they cannot continue to pay passed on their income and expenditure and their realisable assets.
To find out more information about Rule 43 Applications please click on this link provided : https://benitaardenbaum.com/divorce-law/rule-43-applications/
Author – Murray Taylor